Free Speech and Free Media: Help or Hindrance to Development? / Part 1

IPS is publishing in two parts, the statement delivered by Irene Khan, IDLO Director-General at the 25TH Anniversary celebration of The Daily Star Bangladesh in Dhaka on February 8, 2016

DHAKA, Bangladesh, Feb 25 2016 (IPS) - The greatness of a newspaper is not measured by the size of its readership but by its influence and credibility. That is why the New York Times or the Guardian are better known and more respected than the tabloids in their respective countries with ten times their circulation. Like those broadsheets, The Daily Star too strives for quality over circulation, influence over income and credibility over sensationalism.

Irene Khan

I have chosen to speak today about freedom of expression and free media and the value they bring to democracy and development.

February is the month in which we mark our Language Movement and recall the martyrs and activists who marched to establish Bangla, our mother tongue, as our national language. But their demand was not simply for a language, it was a demand for voice, for free speech, for freedom. They paid for freedom with blood – can we preserve that freedom with courage today?

Of all human rights, freedom of speech is possibly the most complex and controversial right. We all love our own right to free speech, but many of us change our minds about how free speech should be when those with whom we disagree begin to talk.

Freedom of speech is not an absolute right and so drawing boundaries raise many dilemmas, never more so than right now with religious intolerance on the rise, political dissent under pressure, and greater technological possibilities than ever before to access, process and disseminate information.

I want to focus on two questions:

• how absolute is freedom of expression, in other words what are the limits of free speech?

• how relevant is freedom of expression, in other words what value does it bring to democracy and development?

I will examine both questions from the global as well as local perspectives. There is much for Bangladesh to learn from what is happening elsewhere.

On Friday, Professor. Yunus began his speech by invoking the image of Paris, with millions of activists marching during the recent Climate Conference. I too begin with the image of millions of people marching in Paris – not last December but in January, 2015, days after the violent killings at the office of Charlie Hebdo – a satirical French weekly – in which 8 journalists, including 4 cartoonists and the editor were shot dead by extremists linked to ISIS. Over 3.7 million people, including President Hollande of France and other top European leaders, marched through the center of Paris, vowing to protect the right of people to think what they wish and speak what they think, without fear or favor.

That was a year ago. Since then there have been more attacks and killings in Paris, and other cities in Europe and the U.S., as well as other parts of the world, from Bamako to Jakarta, not excluding the targeted killings in this country of bloggers, foreign aid workers and religious minorities.

Fear is stalking freedom, once again, as it did in the early part of this century. France has introduced a new surveillance law, and extended its state of emergency. Security laws are being tightened in a number of countries in ways that infringe free speech and access to information. Twitter has suspended some 125,000 accounts. The U.S. Presidential hopeful, Donald Trump has threatened to ban all Muslims from entering the U.S. Around the world fundamentalist beliefs about blasphemy and secular beliefs about democracy and freedom are clashing head on, creating tensions among communities and countries. Many people are saying: “I believe in freedom of expression but…” Salman Rushdie has called them the “but brigade.”

As we mull over that precious gift of democracy – our right to speak freely – and as each country and each of us considers what is permissible, feasible or advisable, it is worth taking a quick look at what history has to say about free speech.

It is commonly said that free speech is an essential pillar of democracy – but it was not quite so clear in ancient Greece, the cradle of democracy. The Greek epic poet Homer supported free expression, but Solon, the first great lawmaker of Athens, banned what he described as “speaking evil against the living and the dead.” Pericles, the leader of democratic Athens, extolled freedom of speech but after the defeat of Athens by Sparta in the Peloponnesian Wars, the Athenian Assembly ordered Socrates to drink poison as punishment for lecturing about unrecognized gods and encouraging young men to question authority.

Censorship was a common practice in Europe for centuries and became even stronger in the sixteenth century after the invention of the printing press which allowed books and papers to be printed challenging the Church and the State. In 1559, the Vatican produced the Congregation of the Index – a long list of banned books that were considered to be heretical. It included Nicolaus Copernicus’ De revolutioni bis orbium coelestium (The revolution of the heavenly spheres, 1543) which challenged the belief of the Catholic Church that the Earth was stationary. The great scientist Galileo Galilei was sentenced to life imprisonment by the Vatican because he confirmed Copernicus’s theories of planetary motion around the Sun. Galileo’s sentence was commuted to house arrest without any visitors only after he knelt before the Pope to recant his belief in Copernican theory. Galileo’s punishment, his recantation and the banning of his books set back scientific research by a hundred years.

During the Reformation, Henry VIII and his daughter Elizabeth I banned all publications that were opposed to the Church of England and invoked the Court of Star Chamber (that bypassed the regular English Courts, rather like our special courts) – the purpose of the Star Chamber was to prosecute “slander.”

After the Star Chamber was abolished in 1637, the British Parliament introduced a censorship law called the Licensing Act. It was against that Act, that John Milton wrote his famous political essay Areopagitica in1644, as a defense of free expression. To paraphrase his essay in one sentence: “Truth is most likely to emerge in a free and open encounter.”

Milton was followed by other thinkers of the Enlightenment like Voltaire who promoted freedom of thought and expression and most importantly, the notion of tolerance through wit and political satire. Voltaire’s beliefs can effectively be summed up as, “I disapprove of what you say, but I will defend to the death your right to say it.”

Sweden became the first European country to abolish censorship in 1766, followed by Denmark and Norway in 1770. In France, the Declaration of the Rights of Man, adopted after the French Revolution, included not only the right to free speech but also the right to own a printing press!

Shortly after that, came American Independence and the U.S. Constitution with its Bill of Rights. The First Amendment to the U.S. Constitution embodies to this day the strongest guarantee of free speech and secularism in the world:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The struggle for freedom and civil rights, including free speech, continued through the nineteenth century. John Mills’ work, On Liberty, published in 1859, became a classic defense of the right to freedom of expression. Mills argued that without human freedom and free discussion there could be no progress in science, law or politics.

While all this was happening in the West, our part of the world was being colonized by the British Empire, with the law introducing one restriction after another. The titles speak for themselves:

It was not until after the Second World War, and the adoption of the Universal Declaration of Human Rights by the United Nations in 1948 that freedom of speech came to be seen as a universally recognized human right. Article 19 of the UDHR proclaims: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Although a universal right, individual countries vary enormously in their interpretation of what constitutes free speech. Every country limits free speech to a greater or lesser extent.

Indeed, the UN Covenant on Civil and Political Rights itself provides room for restriction, stating in article 19 (3) that the right “may be subject to certain restrictions provided by law and (that) are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”

These restrictions must be narrowly defined and interpreted, according to international law. But does that happen in practice? In actual fact, there are wide variations even among western democracies.

The US remains the strongest champion of freedom of speech. The only restrictions that the First Amendment recognizes are obscenity, child pornography, defamation, incitement to violence and true threats of violence, and they too are interpreted very restrictively by the courts.

Let me share with you three leading decisions of the US Supreme Court which have protected and expanded media freedom as an essential element of democracy.

New York Times Co. v. Sullivan (1964), during the days of the Civil Rights movement, concerned a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King’s efforts to integrate public facilities and encourage blacks to vote. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Because of factual errors in the ad, NYT could not claim truth as a defense and Sullivan won a $500,000 judgment in the first instance. NYT appealed to the US Supreme Court, claiming that the case had been brought to intimidate news organizations and prevent them from reporting illegal actions of public employees.

The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth) Before this decision, there were nearly US $300 million in libel actions outstanding against news organizations by various Southern states in the U.S, and caused many publications to exercise great caution when reporting on civil rights breaches by official in the Southern States, for fear that they might be held accountable for libel. After The New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements.

In the famous Pentagon Paper case, New York Times Company v. United States (1971), the government tried to block the New York Times from publishing official documents showing that the Nixon administration had lied about the Vietnam War to Congress and the public.

The Supreme Court set an even higher burden on the government and it could not obstruct the newspaper from publishing.

“Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people …” said Justice Black.

Going beyond press freedom the U.S. Supreme Court has repeatedly affirmed the notion that even unpopular speech enjoys full First Amendment protection. In Brandenberg v. Ohio (1969) the US Supreme Court held that under the Constitution, speech can be banned as incitement to violence only when it is intentional, illegal and the violence or harm is imminent, not just likely. If any of the three elements — intention, imminence, or lawlessness — is absent, the speech in question cannot be constitutionally forbidden.

Neither marches of the Ku Klux Clan, nor holocaust denial can be easily stopped in the U.S. Even burning the US flag is considered to be part of one’s freedom of speech! As the late Justice William Brennan put it, in a case involving flag burning, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

It is a far cry from the way in which courts have treated issues that the public in Bangladesh may find offensive on religious or political or ideological grounds.

European countries, while also protective of freedom of expression, do not go as far as the U.S. Most European countries have laws that ban “hate speech”, i.e. speech that incites racial or religious hatred. A number of them have laws that outlaw holocaust denial, and increasingly European countries are adopting laws banning speech or writing that is an “apology for terrorisms”.

Most European countries however do not ban speech that offends religious feelings. They do not recognize blasphemy as a crime. They see the criticism of religion – even in an offensive manner as was done by the Danish magazine and Charlie Hebdo – as part of their secular freedom.

In practice, however, the lines are not easy to draw between what is religious hatred and therefore banned, and what might be considered as blasphemous but nevertheless permissible as free speech in secular democracies. Recent laws banning speech that is considered to be “apology for terrorism” have added further to the confusion.

The state of freedom of expression in other parts of the world is very different. In Africa, Asia and many other parts of the world, blasphemy is on the statute books and enforced vigorously to silence any criticism of religion, whether Islam, Hinduism or Christianity. It is sometimes also used to silence political dissent and gain support from hardline religious.

In fact, look around the world and you see the slippery slope – restrictions on free speech introduced in the name of security or religion or public sensitivities but that become tools of repression favoring political incumbents. For instance, human rights groups say that in Rwanda, any statement that does not follow the official line on genocide is banned –ostensibly to avoid ethnic hatred but in reality to stifle criticism of the government.

In many countries the constitution guarantees freedom of expression and of the press, but laws on treason, counter-terrorism, blasphemy, criminal libel, publication of false news, even contempt of court are used to suppress media freedom and political criticism. If the law is not enough to chill free speech, then extremist violence acts as a veto, threatening, attacking and killing the critics, the bloggers or the zealous journalists with impunity.

In the words of the Economist, “When it is too risky even to report on restrictions to free speech, there is little left for the censors to do.”

Freedom of expression is the right to speak, it is also the right to hear. Informed political debate requires that this right be strongly protected, and it is only through free expression that individuals can take action to ensure that our governing institutions are held accountable. Restrictions on free speech must be very limited. Otherwise, if the government is allowed to decide which opinions can be expressed and which cannot, an open, vibrant and diverse society quickly breaks down. Similarly, when our court system is used to silence those with unpopular views, we all lose the opportunity to hear all sides of an issue and come to our own conclusions.